The
Yogurt Shop Murder Trial Headlines Shout 'Guilty!' -- But Did the
Prosecution
Make Its Case?

Somebody
Has to Die

BY JORDAN
SMITH

June 15, 2001

At
4pm Wednesday, May 30, the packed state district courtroom of Judge
Mike
Lynch was wrapped in tense silence. After nearly 13 hours of
deliberations
over two days, the seven-man, five-woman jury charged with deciding the
guilt or innocence of Robert Burns Springsteen IV had reached a
decision.

Springsteen, 26,
is the first
of three defendants to be tried for the notorious 1991 murders of four
teenage girls in a North Austin I Can't Believe It's Yogurt! shop. On
December
6, 1991, Eliza Thomas, 17; Amy Ayers, 13; and sisters Jennifer and
Sarah
Harbison, 17 and 15, were found inside the shop -- stripped, bound,
gagged,
shot in the head, and horribly burned in a fire police said was started
to cover the crime. Maurice Pierce, 25, and Michael Scott, 26, have
also
been indicted for the murders and are awaiting trial. Charges against
another
suspect, Forrest Welborn, 25, were dropped in 1999, after two Travis
County
grand juries failed to indict him.

Just before
Springsteen entered
the courtroom to hear the jury's decision, court sources said, defense
lawyer Berkley Bettis had gone in to speak with him. The jurors are
crying,
he told his client -- that's not a good sign.

At 4:05pm, Judge
Lynch read
the jury's verdict: guilty, of capital murder in the death of Amy
Ayers.
(This Springsteen prosecution concerned only the murder of Ayers.) A
collective
gasp, followed by choked sobs, came from the gallery, where the
victims'
families had been sitting for the three weeks of testimony. Springsteen
looked straight ahead. In the jury box, the men and women who had
judged
Springsteen's fate were also crying, covering their eyes and mouths,
consoling
each other.

But that wasn't
the worst
news Springsteen would hear that week. On Friday, June 1, the same
jurors
returned after nearly 11 hours of deliberation to deliver Springsteen's
punishment. Under Texas law, there are only two possible penalties for
capital murder: life in prison -- with a possibility of parole after 40
years -- or death by lethal injection.

During the
punishment phase,
during which each side has the opportunity to call witnesses, defense
lawyers
Bettis and Joe James Sawyer called no one -- no one -- to plead for
their
client's life. Defending this puzzling strategy, Sawyer said that after
prosecutors called Amy Ayers' father, who testified emotionally about
his
family's loss (eliciting an emotional reaction from more than one
juror),
it would've been difficult -- at best -- to call any defense witnesses.
In the face of execution, the defense chose silence.

Memorial on Anderson
Lane
for the yogurt shop
murder victimsphoto by Jana Birchum

On
Friday afternoon, Springsteen again stood virtually motionless in front
of the court and, again, jurors were crying. Their sentence: death, by
lethal injection. After the sentence was delivered, reporters who were
seeking Springsteen's reaction approached Sawyer. "Not guilty," replied
Sawyer, "that's what he says." Indeed, for nearly 10 years, this is
what
Springsteen has said over and over: not guilty.

At a press
conference that
Friday afternoon, Pam Ayers, mother of the youngest yogurt shop victim,
13-year-old Amy, thanked Austinites for their "prayers and support"
over
the past nine and a half years. Later, District Attorney Ronnie Earle
told
the Austin American-Statesman, "We are doing our job, and we altogether
seek justice and truth."

Still -- after
more than
nine years of investigation by the Austin Police Department, aided at
times
by federal investigators -- many questions remain. Have "justice and
truth"
in fact been served? The court has certainly ruled. Yet for those who
sat
through the entire trial (especially those segments of the trial that
were
withheld from the jurors), it seems not so certain that Robert
Springsteen
participated in the yogurt shop murders -- or more precisely, whether
this
trial laid that question to rest, beyond a reasonable doubt.

With two trials
-- those
of Scott and Pierce -- yet to come, questions asked but not answered
(as
well as many additional questions that remain unasked) are bound to
come
up again. There are questions about the evidence (or lack thereof)
linking
the suspects to the crime; about the APD's interrogation tactics and
the
validity of the confessions they obtained from both Springsteen and
Scott;
about the prosecutors' tactics at trial; and about the ability of
Springsteen's
lawyers to mount a sufficient defense.

'Wholesale
Carnage'

On Friday, Dec.
6, 1991,
just before midnight, a police officer on patrol near Northcross Mall
reported
smoke coming from the rear of the I Can't Believe It's Yogurt! shop
located
in a strip mall just down the street. According to media reports at the
time, nearly 50 firefighters responded to the call. After extinguishing
the flames they made a grisly discovery: Four girls lay dead inside the
shop, three of them stacked like wood in the back room, charred nearly
to the bone. APD Detective John Jones was the first investigator to
respond.
"Wholesale carnage," he told reporters after he'd been inside. "I
looked
in there and, 'Oh my God.'" A local CBS news
crew was
out riding along with Jones that evening and remained at the scene,
filming
the first responses of the officers and investigators. Portions of the
tapes were played in court during Springsteen's trial. They showed a
protracted
bustle of activity: firefighters going in and out of the shop
repeatedly,
hours after the fire had been extinguished; Austin Fire Department
paramedics
and arson investigators entering and exiting the shop; the arrival and
departure of the Travis County medical examiner. And finally, at almost
4am -- nearly four hours after the call was put in -- the arrival of
the
Department of Public Safety crime scene investigators (at the time, APD
did not have its own crime scene investigation unit).

It was this gap
in time,
four hours of movement and disruption inside the shop before anyone
arrived
to "process" the scene for evidence, that helped create the chaos that
would plague the APD investigators for the next nine years. DPS
investigator
Irma Rios testified at trial that the efforts of the crime scene
investigators
were not coordinated, that they failed to retain items from the shop
for
evidence -- including an aluminum ladder and other items that were
melted
by the fire -- and that they even failed to process certain areas of
the
property for physical evidence, including the shop's bathrooms, the
front
door, and a large Dumpster situated just outside the shop's back door.
"No one ever pulled out everything that was in the Dumpster," Rios
testified.
"We just looked at what was on top." When asked by Sawyer whether the
investigators
had plotted the interior of the shop in a grid -- standard practice for
a thorough culling of physical evidence -- Rios said the investigators
had not done so.

In the end, not
one speck
of physical evidence was logged by investigators that would link any of
the three defendants to the scene of the crime. There were several
latent
fingerprints found on the lid of a cash register drawer, and at least
five
hairs were recovered from the girls' bodies or items of their clothing.
But after analysis of the fingerprints by a FBI expert and DNA analysis
of the hairs by a private company, none of this evidence was linked to
any of the victims, the defendants, or any of the other yogurt shop
employees.
"There is DNA that cannot be attributed to the four victims or the four
suspects," DNA specialist William Watson told the jury. Furthermore, he
testified, the unmatched hairs came from more than one source.
"Persons.
These are from more than one individual."

Compounding the
lack of evidence
was the unfettered activity at the scene that Friday night. The CBS
cameras
recorded what appeared to be unregulated access to the shop, a notion
that
defense lawyer Sawyer harped on while examining Detective Jones on the
stand. "Sgt. Jones, is there a log in existence [that] reflect[s]
everyone
who went in and out of the crime scene?" Sawyer asked. "It's in the
database,"
Jones replied. However, no log was ever produced as evidence during the
trial by either the district attorneys or the defense. Upon further
questioning,
Jones told Sawyer: "There were enough people in [the yogurt shop on
Dec.
6] that we couldn't control everything that was going out the doors."
Indeed,
in many of the photographs taken at the shop, numerous firefighters and
other officials can be seen standing around in the background.

In the days and
months that
followed the crime, the open access became an evidentiary problem, as
investigators
were inundated with tips and confessions from people who were giving
details
of the crime scene that police had hoped to keep secret. In fact,
police
testified, the list of "core facts" -- crime scene details kept from
the
public as a method to confirm the real culprits -- was getting smaller
and smaller. "Initially, information we would normally keep
[confidential]
was coming back to us with such frequency that we had to cross it off
the
list," Jones testified.

And among other
things, it
is this leaking of important details over the years that sheds a
suspect
light on the only pieces of evidence prosecutors have to try the yogurt
shop defendants: the two confessions obtained by APD officers from
Springsteen
and Scott.

Detailed DynamiteThe interrogation
room on
the second floor of the Charleston, W.Va., police department is a
cramped
space, sparsely furnished with a table and three chairs. There's a
clock
mounted on one wall, placed there by APD detectives and outfitted with
a video camera, which recorded -- sometimes poorly -- the conversation
that took place on Sept. 15, 1999. During the interrogation, Robert
Springsteen
is sitting in a straight-backed chair across from the door. Detective
Robert
Merrill alternately sits in front of the door or with his legs propped
on the wall, blocking the room's only exit. Detective Ron Lara -- and
occasionally
Alcohol Tobacco and Firearms federal agent Chuck Meyer -- sits across
the
table from Springsteen, leaning in and sometimes yelling at him, just
inches
from his face. This was at least
the third
time detectives had interviewed Springsteen in the eight years since
the
yogurt shop murders. Yet even after three weeks of exhaustive trial
testimony
last month -- which largely centered on this confession -- it remains
wholly
unclear what made up the substance of the previous interviews. What
details
had Springsteen been told about the crime by other detectives? What had
he heard and read in media reports? What had he heard in the days after
the crime from other teens that hung around the Northcross Mall? What
crime
scene photos had he been shown? Defense attorneys asked these questions
during the trial without receiving any very convincing answers.

Nonetheless,
after nearly
four hours of interrogation that day in 1999, during which Springsteen
adamantly denied any involvement in the horrific 1991 crime -- as he
had
done for the previous eight years -- he finally began to break down in
front of the police and admitted to being involved in the murders. "I
don't
know whether this is true or not, or whether I'm fooling myself,"
Springsteen
told his interrogators. "I'm so confused ..."

When asked at
trial about
the initial interview in December 1991, Jones said that both
Springsteen
and co-defendant Michael Scott (who also confessed to police, on Sept.
14, 1999, after 18 hours of interrogation) were subsequently
"inactivated"
as witnesses and/or suspects. "We get to a certain point with some
suspects
where we can't pursue them any more," he testified. "At that time we
ran
into a dead end."

So, were the 1999
confessions
and subsequent arrests the product of dogged police work, finally
producing
admissions by Scott and Springsteen to details of the crime that only
the
killers would know? Possibly.

Unfortunately, at
least concerning
Springsteen's statement, that doesn't seem to be the case -- at least
not
beyond a reasonable doubt. First, Springsteen never said anything about
the girls being bound and gagged, or about the rear room of the shop
being
set on fire. Detective Merrill testified that this is so because
Springsteen
terminated the interview before the detectives could get to that point.
Yet Springsteen also told the detectives that Amy Ayers had been shot
first
by a .380-caliber gun -- which he fired -- then, when she didn't
immediately
die, that she was shot a second time with a .22-caliber gun. This
clearly
was not possible, since medical experts testified that, while Amy had
been
shot with both weapons, it was the .380 that ultimately killed her.
Travis
County Medical Examiner Thomas Brown also testified that Ayers was also
strangled with a cloth ligature. Springsteen never mentioned this
either.

Springsteen did
relate certain
details that police said were never made public, and that police said
also
matched Scott's confession. Specifically, Springsteen said the second
weapon
used in the crime was a .380-caliber semi-automatic; that Scott had
tried
unsuccessfully to rape one of the girls; that while casing the shop
earlier
in the day, Springsteen had propped open the rear door with an empty
cigarette
pack or a small rock; and that after the crime, Scott had thrown up
over
a bridge.

At first, these
small but
telling details in Springsteen's confession might seem convincing. Yet
as it turns out, there are other confessions -- most of these
unacknowledged
in the courtroom and unknown to the jury -- that also mention some of
the
details police insist were never made public. Although a court-imposed
gag order remains in force, and restricts detailed discussion of the
murders
until the trials of all three defendants have ended, sources close to
the
case told the Chronicle that there were many confessions -- at least 50
separate confessions, made to police. Some of these are described as
also
containing convincing details -- and many, to this day, have not been
pursued
by investigators. "That's where the dynamite is," said one source.

Police
videotape of Michael
Scott's interrogation apparently shows APD Detective Robert Merrill
holding
a gun to Scott's head. Merrill testified he was "role-playing," and
held
his fingers to Scott's head while holding his gun in the other hand.

In court, defense
lawyers
Bettis and Sawyer were able to introduce only two such confessions into
evidence. "Not to show that they're true," Sawyer told the court. "On
the
contrary, to show they were made by somebody with detailed knowledge of
the crime." The statements admitted, while obviously false, did exhibit
a striking amount of crime scene detail. A confession given by Alex
Brionnes
(who was already wanted in San Antonio for raping a woman and setting
her
on fire) told police in 1992 that the murders started off as a robbery;
that the girls were bound, gagged, and raped then shot; that there were
two guns used and the second "looked like" a silver semi-automatic; and
that napkins and cardboard boxes were stacked on the bodies before the
fire was set. All of these details correspond to the crime, and were
supposedly
confidential.

Similarly, in
another statement
introduced by the defense, Shawn Smith -- described in court as an
Austin
resident who in 1992 voluntarily came forward to confess to the crime
--
told police that he and some friends arrived at the shop after hours;
that
they stripped and bound the girls; that one of the guns used was "an
automatic
of some sort"; that the girls were stacked in the back room and that
lighter
fluid had been used to start the blaze. Police determined that these
confessions
were false because aside from these details, there were other
well-known
aspects of the crime (like the number of victims) that the confessors
didn't
know. Still, if the confessions of Brionnes and Smith -- along with
dozens
of others collected over the years -- were substantially false, how was
it that they contained so much presumably "private" detail? On the
stand,
APD Detective Mike Huckabay -- also one of the initial investigators of
the murders -- readily agreed with Sawyer's statement that the police
department
"quickly became so enmeshed in problems with people coming in with too
much detail, things they shouldn't have known."

"That was pretty
much it,
yes sir," Huckabay replied.

At one point in
the investigation,
Huckabay testified, so many crime scene details were returning in the
form
of random confessions that the investigators thought there might even
be
a leak within the police department. The investigators also admitted
they
had called in nearly 60 local teenagers for questioning, and that the
teens
then were talking among themselves, further disseminating the crime
scene
information.

So, what made
Springsteen,
Pierce, Scott, and Welborn the principal -- and finally exclusive --
targets
of the investigation?

Detective Paul
Johnson, who
took over the investigation in 1996, has said the primary influence was
the initial contact made with Maurice Pierce just over a week after the
murders -- contact that also led to the initial interviews with
Springsteen
and Scott. On Dec. 14, 1991, Pierce was picked up at Northcross Mall
carrying
a .22-caliber pistol and 16 bullets tucked into his jeans. At the time,
he was taken in and questioned by Detective Hector Polanco. Pierce said
in a written statement that the .22 he was carrying at Northcross Mall
had been used by his friend Forrest Welborn to commit the yogurt shop
murders.
Welborn was questioned and denied any involvement, but did say that he
and Pierce, along with Springsteen and Scott, had gone to San Antonio
several
days later in a stolen Nissan Pathfinder. As a result, both Springsteen
and Scott were questioned.

It was the .22,
Detective
Johnson said, that caught his attention again in 1996 -- police knew a
.22-caliber gun had been used in the crime. However, experts testified
at trial that the .22-caliber gun Pierce was carrying that day, which
was
seized by police, does not match the gun that fired the bullets that
killed
the four girls. Indeed, at a pretrial hearing in May 2000, Johnson
admitted
that he had been told by an APD ballistics expert as far back as
January
1999 -- months before the defendants were arrested -- that Pierce's .22
did not match the gun used to shoot the girls. To this day, neither of
the murder weapons has ever been found.

Then there's the
Polanco
factor.

It is safe to say
that Detective
Hector Polanco has a reputation for coercing information out of
suspects.
Most notably, Polanco took the statement of Christopher Ochoa, which
was
used to convict him and his friend Richard Danziger, for a 1988 rape
and
murder it was later determined they didn't commit. The two men were
finally
released from jail earlier this year. Ochoa's confession to Polanco was
extremely detailed -- yet completely false. It was Polanco's interview
with Pierce that put the boys on the suspect list to begin with.
(According
to defense attorney Sawyer, Polanco most likely also conducted the
initial
interview with Springsteen.) During the trial, Polanco testified that
he
has never coerced information from a suspect, "though I've been accused
of it."

Assistant
District Attorney
Efraim de la Fuente made it clear while examining Detective Huckabay
that
Polanco had in fact coerced false admissions from Alex Brionnes, whose
confession Sawyer introduced for its inclusion of detailed crime
information.
Curiously, it seemed the D.A. was making the defense's argument: that
APD
officers had fed people crime scene details, in effect that APD was
jeopardizing
the integrity of its own investigation.

"At any time did
Alex Brionnes
say, 'I was threatened and told what to say?'" de la Fuente asked
Huckabay.
"Yes," Huckabay replied. De la Fuente continued: "And didn't he say
he'd
only gotten his details from Hector Polanco?" Again, Huckabay replied
yes.
Polanco's involvement in the Brionnes and Pierce interrogations --
along
with the infamous Ochoa confession -- may well call into question the
validity
of any information obtained through Detective Polanco regarding the
involvement
of Springsteen and the others in the yogurt shop crime. Yet last week
APD
Chief Stan Knee told K-EYE News: "There is absolutely no comparison
between
[those] two cases. Not only did the jury convict [Springsteen], but
they
gave him the ultimate conviction [sic] for this case."

Knee had
apparently forgotten
that a jury also convicted Ochoa and Danziger.

Confession or
Coercion?

It may seem hard
to imagine
an innocent person confessing to a crime that he or she did not commit,
says Dr. Richard Ofshe, a professor of social psychology at the
University
of California at Berkeley, "but it happens, with improper, illegal use
of interrogation tactics." Over strong objections by the prosecution,
Ofshe
was called by the defense to testify at Springsteen's trial. Judge
Lynch
ended up curtailing the extent to which Ofshe could testify in front of
the jurors (one of several rulings over the course of the trial that
defense
lawyers said had the effect of severely limiting their ability to mount
an effective defense). Ofshe was allowed to discuss, generally, the
tactics
used by police during interrogations, but was not allowed to weigh in
on
whether there was any coercion demonstrated by police in Springsteen's
1999 confession tapes. That judgment, Lynch said, was strictly up to
the
jurors. In the end, Ofshe's testimony was cut short after repeated
objections
by the three-lawyer prosecution team.

Outside the
courtroom, however,
Ofshe told reporters he saw clear signs that Springsteen's confession
was
coerced. "Tactics were used that put him in a place of being considered
the principal target [of the investigation]," he said. "Or, it was
communicated
to him that [if he cooperated with the police] that he'd be considered
a victim. So, Springsteen was put in a position where he had to
choose."
Ofshe was bewildered as to why he wasn't allowed to testify concerning
the confession in front of the jury, especially, he said, since he has
testified similarly in front of Texas juries in the past. "I was
severely
limited in the testimony I might have given," he said. "I know what
happens
in interrogations, and I can help a jury evaluate it fairly. Because,
if
a jury understands how interrogations work, then they can understand
those
things that elicit false confessions."

Why wouldn't the
prosecutors
want him to testify? "My guess would be the politics [of the case],"
Ofshe
said. Was Springsteen coerced? "In my opinion," said Ofshe, "yes."

Prosecutors were
also successful
in barring other testimony that could have suggested an alternate
theory
as to what happened on Dec. 6, 1991, and thereby create further
reasonable
doubt in the jurors' minds as to Springsteen's guilt. Of the dozens of
false confessions said to exist, defense attorneys were allowed to
introduce
only two. They were also barred from introducing testimony that
suggested
that one of Texas' most notorious criminals might be behind the
murders.
Sawyer and Bettis sought to introduce evidence that serial killer
Kenneth
McDuff -- executed in 1998 -- was in the area of the yogurt shop that
Friday
night in 1991. A map found in his car, they said, showed directions
that
would've landed him within three blocks of the shop. Moreover, Sawyer
said,
a woman at Northcross Mall said she'd seen McDuff there that night.
Lynch
ruled that the McDuff evidence was hearsay and would not be admitted.
While
the McDuff material does seem like a long shot, Sawyer told reporters,
"This is nothing but what we've been trying to do since the beginning
--
the collection of other confessions."

Most crippling to
the defense
-- and most likely to become the basis of an appeal -- was Lynch's
decision
to allow the prosecution to introduce portions of Michael Scott's
confession,
which were read to the jury. This decision may have violated
Springsteen's
right to cross-examine witnesses against him. Sawyer said he filed a
450-page
objection, citing several Supreme Court decisions that found
constitutional
violations in similar cases, but Lynch allowed the state to introduce
the
confession anyway. Following the trial, after the jury delivered its
death
sentence to Springsteen, juror Gunther Goetz told the Austin
American-Statesman
that the jurors considered Scott's confession the "key" piece of
evidence.
"That really struck a chord," Goetz said.

"The rulings came
down in
such a way that we were just stripped of our defenses," Sawyer said.
Other
veteran trial attorneys agreed that the heady emotional politics of
this
case -- as in similar capital cases -- often seem to effect judges'
rulings.
"I can tell you that if the state needed to include some evidence, [the
court] wasn't going to exclude it," said Austin attorney Joe Turner.
"They'll
leave that for an appeals court to figure out."

If prosecutors
are so certain
of Springsteen's guilt, why would they so vociferously attempt to bar
the
admission of other confessions and the testimony of Ofshe; while
simultaneously
fighting to admit evidence that, quite possibly, violates Springsteen's
constitutional rights?

Prosecutors have
consistently
declined to comment on the case, citing the gag order, yet perhaps the
answer is simple: Unless the confessions were allowed to stand alone,
there
would be no way to convince the jury to convict.

Blood on the
Courtroom Floor

Perhaps there is
one other
way: Remind the jurors, with repeated and frightening intensity, of the
horrible nature of the crime. "There's no question that when you have a
case like this, the burden of proof seems to lessen for the state,"
said
Turner, who sat through portions of Springsteen's trial. "It really
didn't
seem that there was any relation or connection [between Springsteen and
the crime], and in the first week you could see that there wasn't any
evidence
connecting him either."

In fact, the
entire first
week of the prosecution's case consisted entirely of reminding jurors
(and
the families for that matter) again and again, with graphic photos,
charred
pieces of the girls' clothing and sooty personal effects recovered from
the scene, that this was an amazingly horrific crime. The redundant
reminders
overwhelmed the lack of physical evidence. The endless stream of
photographs
shown to the jurors seemed to have their intended effect: There were
tears,
horrified expressions, and postures of recoil throughout the jury box.
But does the gruesome nature of the crime demonstrate anything about
the
guilt of the suspect at the defense table? "Nothing," Sawyer said.
"They
said, 'Here, let me show you these grisly pictures again and again.'
And
I agree with them, emotionally. But what you've got to be able to do is
say, 'Is any of this fair? Is any of this evidence?'"

Ultimately, the
prosecutorial
motive may be frighteningly simple: For a crime so brutal and
remorseless,
someone has to pay.

But does a
capital conviction
that leaves so many unanswered questions -- and so many uncertainties
suggesting
ample grounds for appeal -- provide the resolution a death sentence
supposedly
requires? Does the Springsteen conviction truly begin to lay to rest
the
horror of the yogurt shop murders?

Since the court's
gag order
was imposed in late 1999, the families of the murdered girls have said
little to the media. After the jury delivered its guilty verdict on May
30, Barbara Ayres (mother of sisters Jennifer and Sarah Harbison) was
surrounded
by reporters and cameras. A reporter asked: "Is this what you wanted?"
Ayres wiped her eyes. "We wanted some kind of an ending," was all she
said.
Last April, on the CBS newsmagazine 48 Hours, Amy's parents Bob and Pam
Ayers said (in an interview recorded years ago) that no end would ever
erase their loss. "Pam hates this word 'closure,'" Bob Ayers told the
reporter.
"All we're ever going to get out of this is a little relief."